What is a Florida Civil-Law Notary?

A Florida civil-law notary, also known as a Florida International Notary, is an officer appointed by the Department of State, rather than the governor, who holds the powers traditionally delegated to notaries in civil-law countries. Although under Florida law, civil-law notaries have all of the same powers and duties as notaries public, they also have much broader and less-regulated authority.

Civil-law notaries must be members of the Florida Bar (for at least 5 years) who practice international law. What makes civil-law notaries so different from regular notaries public is that they are responsible for the entire content of the document. Typically, the documents that civil-law notaries involve themselves in are contracts and other business transaction documents. Whereas a regular notary would simply add an acknowledgment to the end of the document, whereby the signers of the document acknowledge having signed the document willingly, a civil-law notary certifies the actual contents of the document. A civil-law notary can therefore make determinations as to alleged status or capacity. These determinations are found at the end of the document in what are referred to as "notarial acts".

Documents authenticated by a civil-law notary are kept by the notary in what is called a "protocol", which is similar to a notarial journal except that all original documents are kept. The civil-law notary therefore issues certified copies of the document which has the same fource and effect as the original. Original documents are kept by the civil-law notary as long as he holds such position, and upon that notary's death or revocation of his commission, another civil-law notary must inherit the protocol with all of the original documents.

The concept of a civil-law notary is somewhat foreign in the State of Florida, which is a common-law state. The only state in the union which practices civil-law is Louisiana, whose notaries are similary required to be trained in the drafting of documents and mediation between parties to a transaction. Civil-law notaries have general authority to certify an entire transaction as their personal knowledge.

May I take the acknowledgment of or administer an oath to a signer, and then affix my seal and signature at a later time?

In Florida, it is required that the entire notarial act be performed in the presence of the person signing. This includes the affixing of your notarial seal and official signature. Florida Attorney General Opinion 073-185 (dated May 24, 1973) states that the affixing of the notary's seal is a part of the notarial act, and that, because the notarial act must be performed in the presence of the signer, the seal must likewise be affixed in the signer's presence.

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA
No. 073-185
1973 Fla. AG LEXIS 215; Op. Att'y Gen. Fla. 1973-185
May 24, 1973

NOTARIES PUBLIC
ELEMENTS OF ACT OF NOTARIZATION--DUTIES RELATED THERETO

SUMMARY:

Notarization of a document is not complete until the statutory requirements are met. The notary public must sign his official signature and the expiration date of his commission, affix his seal, require reasonable identification of the signer, and the signer must be present at the time his signature is notarized. When the person whose signature is being notarized is not present during the notarization, the notary public is derelict in his duty and has violated the provisions of § 117.09(1), F. S.

REQUEST BY:
Joseph P. D'Alessandro, State Attorney, Fort Myers

QUESTION:
When a notary public watches an individual sign a document and the document is held by a person other than the notary public until a later date, at which time the notary affixes his signature, stamp, and seal upon said document, when does a notarization occur, and; has the notary public who performs the notarization at such later date violated Florida laws?

OPINION BY:
Enoch J. Whitney, Assistant Attorney General; David F. Albrecht, Legal Intern

OPINION:
In many cases, for a document to be duly executed and to have legal effect, it is required that the instrument be acknowledged, attested, protested, or published before a notary public. See §§ 117.03 and 117.04, F. S.

In answer to the first part of the above question, I refer you to § 117.07, F. S., as amended by Ch. 72-8, Laws of Florida, which states:

(1) Every notary public in the state shall add to his official signature to any certificate of acknowledgment made before him a statement of the time of the expiration of his commission as notary public in words and figures as follows: "My commission expires ___" (Herein insert the date when the commission expires.)

(2) A notary seal shall be affixed to all documents notarized, which may be of the rubber stamp or impression type and shall include the words "Notary Public--State of Florida at Large." The seal may also include the name of the notary public.

This statute sets forth three of the five elements of notarization: The notary public must sign his official signature; the commission expiration date must accompany the signature; and "a notary seal shall be affixed to all documents." Section 117.09(1), F. S., sets forth two additional requirements of notarization: There must be reasonable proof of the identity of the person whose signature is being notarized; and the signer must be present at the time his signature is notarized.

Under these statutory provisions, I am of the opinion that notarization of a document cannot reach completion until a notary public has complied with the aforesaid statutory requirements.

Answering the second part of your question: Section 117.09, F. S., states, in part, that the person whose signature is being notarized "must be in the presence of the notary public at the time the signature is notarized."

Assuming this requirement is met, there appears to be no legal reason why the notarization of a signature cannot be performed at a date subsequent to the date on which the notary public sees the person sign such signature, so long as all of the above-discussed elements of notarization are fulfilled.

However, if the person whose signature is being notarized is not in the presence of the notary public at the time of notarization, it would appear that the notary has violated § 117.09(1), F. S. In this regard, see DeCamp v. Allen, 156 So.2d 661 (1 D.C.A. Fla., 1963), at 662 and 663, where the court stated that notaries public are "derelict in their duty if they notarize an acknowledgment without the signatories personally appearing before them."

Thus, it appears clear that a notary public is accountable and responsible for seeing that the provisions of Ch. 117, F. S., are adhered to in performing notarizations.

Pocket reference guide for Florida notaries

Download this handy pocket reference guide for Florida notaries: click here.

The one-page document includes the statutory certificates for an acknowledgment individually, acknowledgment in a representative capacity, oath or affirmation (jurat), and attested copy. It also includes a list of the required elements of a Florida notarial certificate, a list of acceptable forms of identification, and important reminders on taking acknowledgments and administering oaths.

What legal services can Florida notaries provide without being accused of UPL?

Unless a notary is also a licensed attorney, he may not give legal advice or accept fees for legal advice. Case law has established what a non-lawyer can provide as legal services (Fla. Bar v. We the People Forms & Serv. Ctr. of Sarasota, Inc., 883 So. 2d 1280). There is nothing prohibiting a non-lawyer notary from selling blank legal forms, from typing in legal forms completed by a client, from selling general printed legal information, or from selling their own notarial services. What a notary can not do is advise a client as to what type of notarization is necessary, make changes to documents prepared by clients, or explain documents to clients.

Of course, notaries who work as a paralegal or legal assistant, under the supervision of an attorney who is a member of the Florida Bar, are free to draft or explain documents under attorney supervision. However, when a notary-paralegal drafts documents, they are doing so in their capacity as a paralegal, and not as a notary. Similarly, notaries employed by title agencies may frequently draft real estate closing documents and explain those documents to clients.

What does the phrase "and who did/did not take an oath" mean, and what do I do with it?

For only one year did the phrase "who did/did not take an oath" appear in Florida Statutes, and yet it became such a popular phrase that it is now standard on many pre-printed forms. It is important that you know how to deal with this wording in the appropriate manner to avoid contradicting yourself.

If the pre-printed certificate is an acknowledgment, you should first be sure that the document doesn't require an oath. Look for the words "sworn", "swear", or "affirm" in the document. Many times, if the document is an affidavit, it will open with the wording "Before me personally appeared _________, who being duly sworn deposes and says:". In this instance, the document requires a jurat rather than an acknowledgment, and you should therefore strike out the certificate and replace it with a jurat. If the document doesn't require an oath, you may use the pre-printed acknowledgment certificate. In this case, if the phrase "who did/did not take an oath" appears, you may strike out the entire phrase, or you may strike out the word "did" and underline or circle "did not", so it reads "who did/did not take an oath". You should not simply leave the phrase as is; you must either select an option or strike it completely.

When taking an acknowledgment, an oath is not necessary. An acknowledgment is only an indication by the signer that the signature on the document is their own, and that they executed the document voluntarily, in their authorized capacity, for the purposes therein expressed. This declaration is not sworn to by the signer; it is simply declared or indicated.

Archie v. State, 660 So.2d 348 (Fla. 1st DCA 1995), discusses "acknowledgments under oath" in its dissenting opinion. The dissenting judge in that case, in reference to an acknowledgment certificate containing the phrase "and who did take an oath", stated:

"An 'acknowledgment', even under oath, is nothing more than a confirmation by [the signer] that the signature is genuine. It is not equivalent to swearing under oath that the facts alleged are true and correct."

Thus, an acknowledgment certificate containing the phrase "who did take an oath" requires the signer of the document to swear that the signature is genuine. Administering such an oath does not make the acknowledgment any more or any less valid; it is, in all reality, completely unnecessary. In addition, you should specifically note that adding the phrase "who did take an oath" to an acknowledgment does not make the certificate a jurat, and it is therefore unacceptable for use on an affidavit or other document requiring an oath to be administered.

If the "who did/did not take an oath" language is printed in a jurat, you must always indicate that the signer did take an oath. If you state that the document was "sworn to", but that an oath was not taken, you are contradicting yourself.

Notary 101: What is the difference between a jurat/oath and an acknowledgment?

The most important thing a notary must know is the difference between an oath and an acknowledgment. Each of these duties are described in detail in previous articles, but a simple explanation is provided in Pina v. Simon-Pina, 544 So.2d 1161 (Fla. 5th DCA 1989):

Confusion often arises between an affidavit and an acknowledgment. Both memorialize acts done before a notary. But, in an affidavit [jurat] [...], the person swearing before the notary must under oath attest that the facts set forth in the document are true. In an acknowledgment, the person merely declares that he executed and signed the document.

What are the authorized uses of the notary seal?

The law establishing the official seal of notaries public is set forth in section 117.05(3) of the Florida Statutes. That statute authorizes a notary public seal to be affixed to all "notarized paper documents", and defines "official seal" as the rubber stamp (as discussed in a separate article regarding the components of a notary public's seal).

The question arises, what constitutes a "notarized paper document" which permits the affixation of a notary seal? The phrase "notarization" is not defined by statute, but when "notarizing a signature" it is implied that you are either taking an acknowledgment or administering an oath on a paper document. Thus, it is obvious that a notary seal should be used for these notarial acts. In addition, F.S. 117.05(4)(i) requires that when notarizing a signature, a notary public shall complete a jurat or notarial certificate, which must contain the notary's official seal affixed below or to either side of the notary's signature.

There are other instances under Florida law where a notary seal may be used. F.S. 117.05(12)(b) authorized use of a notary seal when attesting to a photocopy. F.S. 117.03 states that a notary public may administer an oath and make a certificate thereof when it is necessary for the execution of any writing or document to be published under the seal of a notary public.

Although not specifically authorized or required by law, notaries traditionally use their seal for other official acts, including drafting protests, verifying a Vehicle Identification Number, drafting a certificate of the contents of a safe deposit box, or solemnizing the rites of matrimony (performing a marriage ceremony). These uses have been approved by the governor's office. However, aside from these exceptions, the notary seal should not be affixed to any other documents not being executed as the notary's official act. Although other uses of the seal are not specifically prohibited by law, a good rule of thumb to keep in notarial practices is, "If it is not specifically authorized by law, it is probably best not to do it."

A notary may never simply "witness a signature" and affix their seal to a document without completing a notarial certificate.